State vs Mahender Sahni on 29 May, 2017

$~39
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment dated: 29th May, 2017
+ Crl. L.P. 339/2017 C.M. No.9322-9323/2017
STATE ….. Petitioner
Through: Mr. Rajat Katyal, APP for the
State

Versus

MAHENDER SAHNI ….. Respondent
Through: None

CORAM:
HON’BLE MR. JUSTICE G.S. SISTANI
HON’BLE MS. JUSTICE REKHA PALLI

REKHA PALLI, J. (ORAL)

CRL.M.A.9322/2017(delay)

1. This is an application seeking condonation of 248 days delay in
filing the present leave to appeal.

2. For the reasons stated in the application and since we have
considered the leave to appeal on merits, the delay in filing the leave
to appeal is condoned.

The application stands disposed of.

Crl. L.P. 339/2017

3. The present leave petition has been filed under Section 378(1)
of the Criminal Procedure Code (Cr.P.C.) praying for leave to assail
the judgment dated 6th June, 2016 whereby the Trial Court had
acquitted the respondent for commission of the offence by which he

Crl. L.P. No.339/2017 Page 1 of 12
was charged in a case being SC No.65 of 2014 arising out of FIR
No.552 of 2013 registered by Police Station Shalimar Bagh under
Section 376 of the Indian Penal Code (IPC) read with Section 4 of the
Protection of Children from Sexual Offences Act, 2012 (hereinafter
referred to as “POCSO Act”).

4. An FIR was registered on the basis of a complaint made by the
father of a girl child (referred to as `N‟) aged about 12 years alleging
that the respondent-Mahender Sahni (residing near the rented house of
the minor `N‟ ) to whom „N‟ used to refer as “Chacha”, had called her
on 12th December, 2013 at about 2.30 p.m. to his house and after
pulling her inside the room, bolted the door. It is further stated in the
FIR that after bolting the door, the respondent had forcibly removed
the clothes of `N‟ as well as his own clothes whereafter he committed
rape upon her. The minor `N‟ thereafter managed to push him; put on
her clothes and ran after opening the door. It was further alleged that
in the evening when her mother came back from work, she narrated
the entire incident to her and the mother of `N‟ went to the house of
respondent at about 9.00 p.m. but he was not found there.

5. It was further alleged that upon not finding the respondent in his
house, the mother of `N‟ kept mum for the sake of family honour and
it is on 15th December, 2013, the father of `N‟ made a call to the police
which was recorded as DD No.35A at 8.55 p.m. with regard to
commission of rape upon `N‟ by the respondent. Thereafter, the
statement of `N‟ was got recorded through a counsellor from NGO i.e.
“Sampurna” and the FIR was registered based upon which the
respondent was arrested on the same day.

Crl. L.P. No.339/2017 Page 2 of 12

6. After completion of investigation, charge-sheet was filed and
charges against the respondent were framed under Section 342 IPC
read with Section 4 of the POCSO Act. An alternate charge was also
framed under Section 376(2)(i) IPC against the respondent. The
respondent pleaded not guilty and claimed trial.

7. To bring home the guilt of the respondent, the prosecution
examined as many as fourteen witnesses. The statement of the
respondent under Section 313 of the Cr.P.C. was recorded wherein he
claimed to be innocent and having been falsely implicated in the case
by `N‟ at the instance of her mother because of a monetary dispute
between him and his brother on the one side and the mother of `N‟ on
the other.

8. The respondent produced two defence witnesses in his defence
namely DW 1 Smt.Manju and DW 2 Mohd.Azmal who both deposed
about the monetary dispute between the parties. The Trial Court
acquitted the respondent which has led to the filing of the present
petition seeking leave to appeal.

9. The Trial Court after scrutiny of the entire evidence with special
emphasis on the statement of `N‟who had been examined as PW 4,
had come to a conclusion that the prosecution had miserably failed to
prove the charged offences against the respondent. The relevant paras
of the Trial Court judgment read as under:-

“24. I have duly considered the law laid down in
the aforesaid judgments and if, the same is applied to
the facts of the present case then it would be evident
that the place of alleged incident i.e. the tenanted
house of accused was situated at the first floor of the

Crl. L.P. No.339/2017 Page 3 of 12
building where there were other tenants in other
rooms and at the ground floor there was a meat shop
of DW-2 Mohd. Ajmal but none of them saw either
going or coming out from the house of accused on
the said date. It is also evident that PW-8 had gone
to the house of accused at about 9 p.m. on
12.12.2013 itself but the accused could not be found
there. There is nothing on record that from
12.12.2013 till 15.12.2013 whether PW-8 or her
husband had again gone to the house of accused. It
is also not clear as to how all of a sudden on
15.12.2013 the father of N had made up his mind to
report the matter to the police. Therefore, possibility
of a coloured version having come on record cannot
be ruled out on account of the aforesaid unexplained
delay in reporting the matter to the police.

25. The medical and forensic evidence does not
support the case of prosecution. N has levelled clear
allegations of accused having committed penetrative
sexual assault per vaginum upon her yet in the
examination kit for victims of sexual abuse neither
any kind of injury on the body of N or on her internal
private parts was noticed. Her hymen was found
completely intact suggestive of the fact that she had
not been subjected to any kind of assault.

xxx xxx xxx

27. In this case, the unexplained delay in reporting
the matter to the police and the medical evidence
being not supportive of the version of N puts her
testimony in jeopardy and makes it either a tutored
or false version and as such it would be highly
unsafe to rely upon the same.

28. The accused has taken the defence of false
implication on account of a monetary dispute
between father of N and him. The accused has

Crl. L.P. No.339/2017 Page 4 of 12
examined two defence witnesses to prove the same.
Strangely the father of N was cited as a prosecution
witness but he was not examined in the matter
despite he being available as a consequence whereof
a material prejudice has been caused to the accused
as the father of N would have been the best witness
to whom the accused would have put his defence.
Therefore, adverse inference is liable to be drawn
against the prosecution on this account.”

10. While acquitting the respondent, the Trial Court was duly
conscious of the fact that it is settled law that the conviction could be
based on the sole testimony of child victim provided it appears to the
court to be truthful and believable but after examining the entire
evidence including the testimony of PW 4, it came to a conclusion that
it would be highly unsafe to rely upon the same and, therefore, held
that the respondent deserved to be acquitted.

11. Mr.Rajat Katyal, learned APP for the State submits that the
impugned judgment is manifestly wrong, illegal and against the facts
on record and, thus, warrants interference by this Court. He further
submits that the Trial Court has failed to appreciate the testimony of
PW 4 as a child victim and overlooked the fact that she had been
consistent through the trial as well as during the investigation and her
statement could not be dented during cross-examination which duly
proved the case of the prosecution regarding the commission of the
offence and, thus, the Trial Court has erred in acquitting the
respondent.

12. We have heard learned APP for the State and carefully
examined the testimony of the witnesses and the impugned judgment

Crl. L.P. No.339/2017 Page 5 of 12
rendered by the Trial Court. The question which arises for our
consideration is as to whether the Trial Court has erred in not relying
upon the statement of the child victim to convict the respondent.

13. To deal with the submissions on behalf of the State, it would be
relevant to analyse the testimony of the victim. The child victim was
examined in the Court as PW 4 wherein she deposed in her
examination-in-chief that as the respondent was from her village, he
was like her “chacha” (uncle) and on 12th December, 2013, when she
was going to call her father for lunch, she met the respondent who
called her to his house. PW 4 further states that after giving food to
her father, she went to the house of the respondent at around 2.30 p.m.
when he pulled her inside and bolted the door. She further deposed
that he forcibly removed her clothes and his clothes and committed
rape upon her forcibly and when she tried to make noise, he held her
hands and pressed her mouth forcibly. She further deposed that as
soon as she got a chance, she pushed the respondent; wore her clothes;
opened the door and ran back to her own house. PW 4 in her
testimony further deposed that she narrated the entire incident of rape
to her mother at night who went to the respondent‟s house at 9.00 p.m.
but he was not present at home. Later at night, the entire incident was
narrated by her mother to her father but due to family honour, they did
not report the incident to the police.

14. PW 4 further stated that on 15th December, 2013, she asked her
parents to report the incident to the police and after reporting the
incident to the police, a woman Sub-Inspector reached the house of
`N‟, got her counseled through a counselor from NGO, and then

Crl. L.P. No.339/2017 Page 6 of 12
recorded her statement. Thereafter, the victim was taken to a hospital
in Jahangir Puri where her medical examination was conducted and
she narrated the entire incident to the doctor also. During her cross-
examination, she reiterated her statement in chief and added that the
clothes which she was wearing on the date of the incident, had been
washed by her mother.

15. Undoubtedly, conviction can be based on the sole testimony of
the victim provided that it is trustworthy. However, in case the Court
has reason not to accept the version of victim, it may look for
corroboration. The evidence has to be read in its totality and if the
court comes to a conclusion that the statement of victim is either
tutored or a false version, it would be unsafe to rely upon the same to
convict the accused.

16. It is also settled proposition of law that in case evidence read in
its totality and the story projected by the prosecutrix is found to be
improbable, her version is liable to be rejected. The Apex Court in
Narender Kumar versus State (NCT of Delhi), reported at (2012) 7
SCC 171, has held as under:

“20. It is a settled legal proposition that once the
statement of prosecutrix inspires confidence and is
accepted by the court as such, conviction can be
based only on the solitary evidence of the
prosecutrix and no corroboration would be
required unless there are compelling reasons
which necessitate the court for corroboration of
her statement. Corroboration of testimony of the
prosecutrix as a condition for judicial reliance is
not a requirement of law but a guidance of
prudence under the given facts and circumstances.

Crl. L.P. No.339/2017 Page 7 of 12

Minor contradictions or insignificant
discrepancies should not be a ground for throwing
out an otherwise reliable prosecution case.

21. A prosecutrix complaining of having been a
victim of the offence of rape is not an accomplice
after the crime. Her testimony has to be
appreciated on the principle of probabilities just
as the testimony of any other witness; a high
degree of probability having been shown to exist in
view of the subject matter being a criminal charge.
However, if the court finds it difficult to accept the
version of the prosecutrix on its face value, it may
search for evidence, direct or substantial, which
may lend assurance to her testimony. (Vide: Vimal
Suresh Kamble v. Chaluverapinake Apal S.P.
Anr., (2003) 3 SCC 175; and Vishnu v. State of
Maharashtra, (2006) 1 SCC 283.

22. Where evidence of the prosecutrix is found
suffering from serious infirmities and
inconsistencies with other material, prosecutrix
making deliberate improvements on material point
with a view to rule out consent on her part and
there being no injury on her person even though
her version may be otherwise, no reliance can be
placed upon her evidence. (Vide: Suresh N.
Bhusare Ors. v. State of Maharashtra,: (1999) 1
SCC 220.

23. In Jai Krishna Mandal Anr. v. State of
Jharkhand, (2010) 14 SCC 534, this Court while
dealing with the issue held:

“4…..the only evidence of rape was the
statement of the prosecutrix herself and when

Crl. L.P. No.339/2017 Page 8 of 12
this evidence was read in its totality, the story
projected by the prosecutrix was so improbable
that it could not be believed.”

24. In Rajoo Ors. v. State of Madhya Pradesh,
(2008) 15 SCC 133, this Court held:

“10…..that ordinarily the evidence of a
prosecutrix should not be suspected and
should be believed, more so as her statement
has to be evaluated on par with that of an
injured witness and if the evidence is reliable,
no corroboration is necessary.”

The court however, further observed:
“11……..It cannot be lost sight of that rape
causes the greatest distress and humiliation to
the victim but at the same time a false
allegation of rape can cause equal distress,
humiliation and damage to the accused as
well. The accused must also be protected
against the possibility of false implication……
there is no presumption or any basis for
assuming that the statement of such a witness
is always correct or without any embellishment
or exaggeration.”

25. In Tameezuddin @ Tammu v. State (NCT of
Delhi), (2009) 15 SCC 566, this Court held has
under:

“9. It is true that in a case of rape
the evidence of the prosecutrix must be given
predominant consideration, but to hold that
this evidence has to be accepted even if the

Crl. L.P. No.339/2017 Page 9 of 12
story is improbable and belies logic, would be
doing violence to the very principles which
govern the appreciation of evidence in a
criminal matter.”

17. The Hon‟ble Supreme Court in State of Rajasthan v. Babu
Meena reported at (2013) 4 SCC 206 has observed as under:

“9. We do not have the slightest hesitation in
accepting the broad submission of Mr Jain that the
conviction can be based on the sole testimony of the
prosecutrix, if found to be worthy of credence and
reliable and for that no corroboration is required. It
has often been said that oral testimony can be
classified into three categories, namely, (i) wholly
reliable, (ii) wholly unreliable, and (iii) neither
wholly reliable nor wholly unreliable. In case of
wholly reliable testimony of a single witness, the
conviction can be founded without corroboration.
This principle applies with greater vigour in case the
nature of offence is such that it is committed in
seclusion. In case prosecution is based on wholly
unreliable testimony of a single witness, the court
has no option than to acquit the accused.”

18. While deciding the present leave petition, the afore-stated
principles culled out by the Apex Court, are to be kept in view. In the
present case, the following circumstances which stood established are
noteworthy:-

(i) The tenanted house of the respondent was situated at the first
floor of the building where there were other tenants in other rooms and
at the ground floor, there was a meat shop of DW 2 Mohd Azmal but
none of them saw the child either going or coming out from the house
of the respondent on the said day.

Crl. L.P. No.339/2017 Page 10 of 12

(ii) There is no justification for the unexplained delay in reporting
the matter to the police and there is nothing on record as to what action
had been taken by the parents of `N‟ from 12th December, 2013 till 15th
December, 2013 and it is not clear as to how all of a sudden on 15th
December, 2013, the father of „N‟ had made up his mind to report the
matter to the police

(iii) The medical and forensic evidence does not support the case of
the prosecution at all though `N‟ had levelled clear allegations of the
respondent having committed penetrative sexual assault per vaginum
upon her yet there was no kind of injury at her body or on her internal
parts. On the other hand, the hymen of the victim was found
completely intact. It was suggestive of the fact that she had not been
subjected to any kind of assault.

(iv) It is an admitted fact that the father of `N‟ was cited as a
prosecution witness but was not examined in the matter despite his
availability.

19. As far as the contention of Mr.Katyal regarding the justification
given by the mother of „N‟ for the delay in reporting the matter to the
Police is concerned, the same has to be rejected.

20. In the present case, on a cumulative reading and appreciation of
the entire evidence on record, we are of the considered view that the
testimony of the child victim is not reliable to bring home the guilt of
the respondent. We are satisfied that given the evidence led by the
prosecution during the trial, the findings of the Trial Court cannot be
assailed on the grounds raised by the counsel for the State.

Crl. L.P. No.339/2017 Page 11 of 12

21. Even otherwise, it is settled law that the appellate court may
only interfere in an appeal against acquittal when there are substantial
and compelling reasons to do so [See Sheo Swarup v. King-Emperor,
AIR 1934 PC 227 (2); M.G. Agarwal v. State of Maharashtra, AIR
1963 SC 200 (paragraph 16 and 17); Tota Singh and Anr. v. State of
Punjab, AIR 1987 SC 108: (1987) 2 SCC 529 (paragraph 6); State of
Rajasthan v. Raja Ram, (2003) 8 SCC 180 (paragraph 7); and
Chandrappa v. State of Karnataka, (2007) 4 SCC 415 (paragraph

42)].

22. We find no infirmity in the findings and conclusions of the Trial
Court.

23. The leave to appeal and application being C.M. No. No.
9323/2017 are accordingly dismissed.

REKHA PALLI, J.

G. S. SISTANI, J.

MAY 29, 2017
aa

Crl. L.P. No.339/2017 Page 12 of 12

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